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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No: EB-11-SJ-0028
)
Eleuterio Lebron NAL/Acct. No.: 201132680003
)
Guayama, PR FRN: 0020992913
)
)
FORFEITURE ORDER
Adopted: March 6, 2012 Released: March 6, 2012
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of one thousand five hundred dollars ($1,500) to Eleuterio
Lebron for willful and repeated violation of Section 301 of the
Communications Act of 1934, as amended (Act). The noted violations
involved Mr. Lebron's operation of an unlicensed radio transmitter on
the frequency 88.5 MHz in Guayama, Puerto Rico. The monetary
forfeiture imposed reflects consideration of Mr. Lebron's inability to
pay claim.
II. BACKGROUND
2. On September 21, 2011, the Enforcement Bureau's San Juan Office (San
Juan Office) issued a Notice of Apparent Liability for Forfeiture
(NAL) to Mr. Lebron for his operation of an unlicensed radio
transmitter on the frequency 88.5 MHz without the requisite Commission
authorization. Mr. Lebron submitted a response to the NAL requesting
cancellation or reduction of the proposed $15,000 forfeiture,
asserting that "it was not [his] intention to act against the law,"
and that he believed his transmitter was able to be used legally
without a license. Mr. Lebron also asserted that he cannot afford to
pay the forfeiture.
III. DISCUSSION
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Commission's rules
(Rules), and the Forfeiture Policy Statement. In examining Mr.
Lebron's response, Section 503(b)(2)(E) of the Act requires that the
Commission take into account the nature, circumstances, extent, and
gravity of the violation and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require. As discussed below, we have
considered Mr. Lebron's response in light of these statutory factors,
and find that a reduction of the forfeiture is justified.
4. As set forth in the NAL, agents from the San Juan Office determined
that Mr. Lebron owned and controlled, and therefore operated, an
unlicensed radio station on the frequency 88.5 MHz in Guayama, Puerto
Rico on more than one day. In response to the NAL, Mr. Lebron does not
deny that he owned and operated the station, but argues that he did
not intend to violate the law. In support of his argument, Mr. Lebron
explains that he purchased a Ramsey PX50 transmitter, which he claims
was marketed as being Part 15 compliant. He states: "[I] believed to
have a device certified by the FCC that complies with Part 15 of the
FCC rules. I declare this as an error [on] my part since I thought it
would give me the permit to operate a radio transmission that covers
[P]art 15, well known as a license exempt item." He further states:
"[it] wasn't my intention to harm anyone with this device, but [I was]
only seeking the spiritual welfare and edification of my hometown
habitants." The fact that Mr. Lebron may have mistakenly thought that
his actions were consistent with the Commission's rules does not serve
to justify or mitigate the violation in this instance. First, it is
well established-for purposes of imposing a forfeiture penalty under
Section 503 of the Act- that a willful violation can occur
"irrespective of any intent to violate" the law. Secondly, we find Mr.
Lebron's argument unpersuasive, given that Mr. Lebron previously had
been warned by our agents before the June 2011 violations that
operation of his Ramsey PX50 transmitter was illegal and in violation
of Section 301 of the Act. Therefore, we affirm the findings in the
NAL that Mr. Lebron willfully and repeatedly violated Section 301 of
the Act by operating an unlicensed radio transmitter.
5. As part of his NAL Response, Mr. Lebron also submitted financial and
other information in support of his inability to pay claim. With
regard to an individual's or entity's inability to pay claim, the
Commission has determined that, in general, gross revenues are the
best indicator of an ability to pay a forfeiture. Having reviewed Mr.
Lebron's submitted documentation, we conclude that the forfeiture
should be reduced to $1,500, an amount within the range that the
Bureau has determined to be appropriate under the circumstances.
However, we caution Mr. Lebron that a party's inability to pay is only
one factor in our forfeiture calculation analysis, and not
dispositive. We have previously rejected inability to pay claims in
cases of repeated or otherwise egregious violations. Therefore, future
violations of this kind may result in significantly higher forfeitures
that may not be reduced due to Mr. Lebron's financial circumstances.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, Eleuterio
Lebron IS LIABLE FOR A MONETARY FORFEITURE in the amount of one
thousand five hundred dollars ($1,500) for violations of Section 301
of the Act.
7. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days of the
release of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
enforcement pursuant to Section 504(a) of the Act. Payment of the
forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the NAL/Account number and FRN referenced above. Payment by
check or money order may be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by
wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payment by credit card, an
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the NAL/Account number in block number 23A
(call sign/other ID), and enter the letters "FORF" in block number 24A
(payment type code). Requests for full payment under an installment
plan should be sent to: Chief Financial Officer -- Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk with
any questions regarding payment procedures at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. Mr. Lebron shall also send electronic
notification to SCR-Response@fcc.gov on the date said payment is
made.
8. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Eleuterio
Lebron at his address of record.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 U.S.C. S: 301.
Eleuterio Lebron, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd
13070 (Enf. Bur., San Juan Office 2011) (NAL). A comprehensive recitation
of the facts and history of this case can be found in the NAL and is
incorporated herein by reference.
Letter from Eleuterio Lebron to William Berry, Resident Agent, San Juan
Office, at 1 (Oct. 9, 2011) (on file in EB-11-SJ-0028) (NAL Response).
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997), recons. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
47 U.S.C. S: 503(b)(2)(E).
Mr. Lebron claims Ramsey Electronics materials stated that the device
"complies with Part 15 of the FCC rule[s]," and that there are "no more
worries about your station being forced off the air due to
non-compliance." NAL Response at 1. However, Ramsey Electronics's webpage
for the PX50 transmitter states: "The PX50 is FCC CERTIFIED for PARTS 2,
73, & 74! No more worries about your station being forced off the air due
to non-compliance!" See
http://www.ramseyelectronics.com/cgi-bin/commerce.exe?preadd=action&key=PX50
(last visited Oct. 24, 2011). It does not appear that the certification
disclosure included Part 15.
NAL Response at 1.
Id.
47 U.S.C. S: 312(f)(1).
See Eleuterio Lebron, Notice of Unlicensed Operation (Enf. Bur., San Juan
Office rel. March 2, 2010).
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
See 47 U.S.C. S: 503(b)(2)(E) (requiring Commission to take into account
the nature, circumstances, extent, and gravity of the violation and, with
respect to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may require).
Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western
Region 2011) (holding that violator's repeated acts of malicious and
intentional interference outweigh evidence concerning his ability to pay);
Hodson Broadcasting Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur.
2009) (holding that permittee's continued operation at variance with its
construction permit constituted an intentional and continuous violation,
which outweighed permittee's evidence concerning its ability to pay the
proposed forfeitures).
47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4).
47 C.F.R. S: 1.80.
47 U.S.C. S: 504(a).
Federal Communications Commission DA 12-338
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Federal Communications Commission DA 12-338